Dealing with the 3, 10 and “Permanent” Bars
Overview of the 3, 10 and Permanent Bars
- INA §212(a)(9)(B)(i)(I) provides that a noncitizen is inadmissible if he or she was unlawfully present in the United States for a period of more than 180 days but less than one year, voluntarily departed the United States (whether or not pursuant to a grant of voluntary departure) prior to the commencement of proceedings under §235(b)(1) or §240 and again seeks admission within three years of the date of departure or removal.
- INA §212(a)(9)(B)(i)(II) provides that a noncitizen is inadmissible if he or she was unlawfully present in the United States for a period of one year or more, departed the United States and again seeks admission within ten years of the date of departure or removal.
- INA §212(a)(9)(C)(i)(I) provides that any alien who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to reenter the United States without being admitted, is inadmissible. The referenced period of unlawful presence is the aggregate of all periods of unlawful presence prior to the unlawful reentry or attempted reentry.
- Under INA § 212(a)(9)(B)(ii), an alien is considered to be unlawfully present if he or she is present in the United States either after the period of stay authorized by the Attorney General has expired or without admission or parole. Aliens who enter the United States without admission or parole accrue unlawful presence as of the date of unlawful entry into the United States or April 1, 1997, whichever is later.
Legacy INS adopted the interpretation under which unlawful presence for an alien admitted as a nonimmigrant begins to accrue as of the date the alien’s nonimmigrant stay expires, as noted on Form I-94, Arrival/Departure Record. Under this interpretation, unlawful presence with respect to a nonimmigrant generally includes only periods of stay in the United States beyond the date noted on Form I-94.
If USCIS concludes prior to the expiration date that the alien violated his or her nonimmigrant status, unlawful presence will begin to accrue as of the date of the USCIS decision denying the requested immigration benefit, whether or not any form of review is sought. USCIS may find an alien to have violated his or her status, for example, while adjudicating an application for extension of nonimmigrant stay or reinstatement to bona fide nonimmigrant status, a change of nonimmigrant classification, or an application for adjustment of status.
A nonimmigrant issued a date-certain Form I 94, who is placed in removal proceedings before his or her authorized stay expires, will begin to accrue unlawful presence either when the date noted on Form I-94 has been reached, or when the immigration judge orders the alien to be removed, whichever date is earlier. When the Service places a nonimmigrant in removal proceedings, and the alien successfully contests the charges brought by the Service in a proceeding, the alien will be deemed not to have accrued any periods of unlawful presence in the United States during that proceeding.
For nonimmigrants admitted for duration of status (D/S), unlawful presence will begin to accrue only if the Service finds a status violation while adjudicating an application for another benefit, or if an immigration judge finds the alien in violation of status in removal proceedings. When the immigration judge finds that the alien violated his or her nonimmigrant status, unlawful presence begins to accrue as of the date of the judge’s order, whether or not the judge’s decision is appealed.
How The Three-Year Bar Is Triggered
- The three-year bar only applies to an alien who is unlawfully present for more than 180 days but less than one year and who voluntarily departs the United States prior to the commencement of removal proceedings.
- Thus, if the alien were present for more than 180 days but less than one year, and if he or she voluntarily departed the United States after removal proceedings were initiated, then the three-year bar does not apply.
How the Ten-Year Bar is Triggered
- The ten-year bar is triggered by any departure from the U.S. An alien who has been unlawfully present in the U.S. for more than one year consecutively and again seeks admission is barred for ten years from the date of departure or removal from the U.S.
- An alien who has been unlawfully present for an aggregate period of more than one year or who has been ordered removed, deported or excluded and who enters or attempts to reenter without inspection is inadmissible. A discretionary waiver is available but only after the alien has been outside of the U.S. for ten years or more. DHS may waive this ground for a battered spouse/child if there is a connection between the battering and the departure or reentry/attempted reentry.
Effect of Recent 9th Circuit Decision Carrillo de Palacios, 651 F.3d 1158 (9th Cir. 2011)
• Alien who accrued more than one year of unlawful presence prior to April 1, 1997* and who departed prior to April 1, 1997 but reentered EWI after April 1, 1997 is inadmissible under 212(a)(9)(C)(i)(I).
* April 1, 1997 is effective date of 212(a)(9)(C)(i)(I)
• “The statutory text is straightforward: an alien is inadmissible if she has been unlawfully present in the United States for an aggregate period of more than 1 year and subsequently enters the United States without being admitted.”
Does 245(i) Help?
No Unlawful Presence Bar if alien doesn’t depart.
245(i) Does not Waive Inadmissibility except INS General Counsel determined that persons who entered EWI are eligible to adjust under 245(i) notwithstanding 212(a)(6)(A).
But what if Alien Departed after UP and Reentered EWI? 245(i) v. 212(a)(9)(C)(i)(I)
- 2005: In Padilla-Caldera v. Gonzales, 426 F.3d 1294 amended on reh’g by 453 F.3d 1237 (10th Cir. 2006), the court considered the canons of statutory construction to reach the conclusion that 245(i) trumps 212(a)(9)(C)(i)(I).
- 2006: Acosta v. Gonzales, 439 F.3d 1158(9th Cir. 2006), the court held that 245(i) trumps 212(a)(9)(C)(i)(I)
- 2007: Matter of Briones, 24 I&N Dec. 355 (BIA 2007), BIA holds that an alien who was inadmissible under INA§ 212(a)(9)(C)(i)(I) is ineligible for adjustment of status under §245(i).
- 2010: Matter of Diaz, 25 I&N Dec. 188 (BIA 2010): BIA refused to follow Acosta in the Ninth Circuit because the Acosta decision predated Matter of Briones.
- 2011: Padilla-Caldera v. Holder, 673 F.3d 1140 (10th Cir. 2011). Tenth holds that that the BIA’s determination in Matter of Briones, was a reasonable interpretation of ambiguous statutory provisions to which the court owed Chevron deference.
Can Time Spent in the U.S. Count Toward Satisfying the 3 and 10 year Bars?
The 3 and 10 year bars are triggered exclusively by the alien s departure from the United States as confirmed by the Board of Immigration Appeals in Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006), the Administrative Appeals Office in In re Sallez-Vaz (AAO, Feb. 22, 2005), the USCIS Adjudicators Field Manual, and all other relevant legal authority.
The plain statutory language of INA § 212(a)(9)(B)(i) imposes no requirement whatsoever that the period of inadmissibility be “served” outside the United States.
The USCIS Office of General Counsel specifically confirmed in written correspondence in 2006 and 2009 that the Section 212(a)(9)(B) period of inadmissibility begins to run with the initial departure from the U.S. that triggers the unlawful presence bar and continues to run even if the alien is subsequently paroled or admitted as a nonimmigrant under 212(d)(3).
But, according to the GC opinions, the period of inadmissibility will not run for an alien who returns to the U.S. unlawfully or remains in the United States unlawfully, thus essentially imposing a maintenance of status requirement that is not included in the statute.
In In re Sallez-Vaz (AAO, Feb. 22, 2005), the alien departed the U.S. after 180+ days (but less than one year) of unlawful presence while his adjustment of status application was pending with USCIS,and returned soon thereafter with advance parole. His adjustment application was denied by USCIS and certified to the AAO, which issued a ruling more than 3 years after the departure that triggered the bar. The AAO held:
“The passage of time has created a new circumstance which renders the applicant free from any bar to inadmissibility based upon his unlawful presence…It is apparent, therefore, that the applicant’s period of inadmissibility has now expired and he is no longer subject to the bar.”
Notably, unlike the USCIS General Counsel opinions, the AAO did not impose any other conditions (such as maintenance of status) for having the period of inadmissibility “run” during the alien’s presence in the U.S.
INA § 212(a)(9)(B) is in direct contrast with §212(a)(9)(A) and § 212(a)(9)(C), which each have “Exception” subsections that specifically state that the respective statutes do not apply to certain aliens who seek admission if, prior to the date of their re-embarkation at a place outside the U.S. (or attempt to be admitted from a contiguous territory), the Attorney General has consented to their reapplying for admission.
Also, please see 8 C.F.R. 212.2(a), which specifically states that an alien who has been deported or removed is inadmissible unless he remains outside the U.S. for 5 consecutive years from the date of deportation or removal.
Basic rules of statutory construction dictate that Congress’ failure to include a similar requirement in 212(a)(9)(B)(i) was intentional. Accordingly, an alien who is readmitted to the U.S. as a nonimmigrant, but without first receiving 212(d)(3) permission, should still be able to satisfy the 3 or 10 year period from within the U.S. if he is otherwise eligible to adjust status.
How Permanent is the “Permanent” Bar?
- 212(a)(9)(C)(ii) includes immediate waiver exception for a person with approved “VAWA” petition where there is “a connection” between the alien having been battered or subjected to extreme cruelty and his/her removal, departure from the U.S., reentry/reentries to U.S., or attempted reentry.
- 212(a)(9)(C)(ii) also includes a waiver exception for persons seeking admission more than 10 years after the date of last departure from U.S. if, prior to re-embarkation from outside U.S., the Attorney General has consented to the alien’s reapplying for admission.
- Persons subject to 212(a)(9)(C)(i)(I) (EWI or attempted EWI after more than one year of unlawful presence) may still apply for 212(d)(3) waiver in conjunction with application for nonimmigrant visa, but should be mindful of likelihood of strict application of 214(b).
- Persons subject to the permanent bar may also apply for 212(d)(3)(5) humanitarian parole, but should be mindful that such applications are normally approved only in urgent humanitarian cases and/or those involving significant public interest. Also, DHS is likely to limit the length of the parole to the period required to address the situation at hand.
